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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP on the Review of the Domestic Violence Act (DVA), at an Intersectional Dialogue on the DVA, held at the River Club, Observatory, 20 August 2019

Programme Director,
Prof Lillian Artz and Members of the Gender, Health and Justice Research Unit of UCT,
Representatives from the Heinrich Böll Foundation and from Wits City Institute,
Members of the Women’s Legal Centre,
Representatives from the Western Cape Department of Community Safety,
Representatives from various civil society bodies and from academia,
Ladies and gentlemen, friends
                         
Good morning to you all. As I mentioned at the memorial service held for the late Dr Aisling Heath, the very last discussion Aisling and I had, was about this event.

The prevention of domestic violence was something she was passionate about and therefore I would like to pay special tribute to her this morning.

Domestic violence challenges society at every level.  Violence in families often happens behind closed doors and it devastates many women physically, sexually, emotionally and financially. Research shows that domestic violence against women remains widespread and under-reported.

We remember women like Karabo Mokoena, Versha Kandasamy, Zanele Khumalo, Rachel Dolly Tshabalala and so many others whose names we know and those we might not know – all women killed by their partners. 

The impact of witnessing domestic violence is also particularly detrimental to children. Children are often present to see or hear the abuse. They witness the bruises, black eyes or broken limbs. 

Many children exhibit signs of post-traumatic stress disorder after witnessing domestic violence and as they grow older, they may experience feelings of guilt for not protecting the victim and may turn to drugs or alcohol.  It also sends the message to children that violence is an acceptable way to cope with stress, deal with one’s problems or to gain control over another person.

I have no doubt that much of the violence that we see in society today stems from children growing up in violent homes. Studies show that living with domestic violence increases a child’s risk of encountering the child justice system, of attempting or committing suicide, of offending and specifically committing sexual assault crimes, and an increased chance of abusing alcohol or drugs.

It should not be surprising that in the 2018/19 financial year our child justice courts experienced a 75% increase of children convicted with assault with intent to do grievous bodily harm. With more children committing serious offences, sentences of imprisonment imposed on children have increased from 62 in 2017/18 to 110 in the 2018/19 financial year. Some 22 of these children are serving prison sentences for rape, whilst 16 are imprisoned for murder. These figures are indeed alarming and, in cases of dysfunctional and violent homes, the need for responsible parenting and family rehabilitation is becoming increasingly urgent. 

Our Department compiles a yearly report on domestic violence cases where we track the number of civil domestic violence cases and the number of criminal domestic violence cases registered. We then do a comparison between the financial year under review and the one before.

With regards to the civil cases, a total of 387 013 cases were registered during 2017/2018 and 389 573 civil domestic matters were registered during 2018/19 – thus meaning an increase of 0,7%.

On the criminal cases, totals of 210 067 cases and 208 591 cases were registered during 2017/18 and 2018/19, respectively, which results in a 0.7% decrease.

When one looks at the number of cases disposed of, some 10 149 cases were disposed of in 2017/18 and 9 324 cases were disposed of in 2018/19.

Of these cases - for 2017/18 and 2018/19 - 18% and 19% of cases were finalised with a guilty verdict. However, and this is the most concerning, most of the disposed cases (52% and 58% respectively) were removed from the roll as “withdrawn”.

It is this persistent pattern of increasing withdrawals in domestic violence cases that prompted the Department to commence with the process of exploring the feasibility of tightening the non-withdrawal clause - as provided for in section 18 of the Act - in the previous financial year. There is still time for role-players present at this dialogue to share their inputs on this amendment as the process is not yet finalised.  

From our annual statistics, in 2017/18 and 2018/19 most of the abuse cases that were reported were for emotional, verbal and psychological abuse, followed by physical abuse.

The Crime against Women Report, released by Statistics SA in 2018, mentions that only 9% of households in South Africa know a shelter or a place of safety for victims of domestic violence.

The report further states that attitudes and perceptions play a very important role in shaping human behaviour, including criminal activity and vulnerability to crime. Attitudes towards women, driven mostly by cultural and religious beliefs, often determine how women are treated in society.

The report estimates that 3,3% of men and 2,3% of women in South Africa think it is acceptable for a man to hit a woman.

Personally, I am of the view that the percentages are likely to be much higher – particularly since other studies, like Statistics SA’s 2016 Demographic and Health Survey, have showed that, on average, one in five South African women older than 18 has experienced physical violence by a partner.

The Crime against Women Report also notes that, of those who thought it acceptable to hit a woman, the pattern of responses for men and women was quite similar, the only difference being that the percentages for women are slightly lower than those for men. Both groups shared similar views concerning the various issues perceived by them to be possible justification for abuse. Neglecting the children and arguing with the husband are considered by both men and women to be the most serious issue, while burning the food is considered to be a minor issue.

The last question asked to respondents was whether women should have the same constitutional rights as men. The report estimates that 67% of South African men agreed with this statement, while 73% of women agreed. These relatively low percentages raise the question as to whether respondents understood the concept of constitutional rights – and this is something that we need to continue to address, as we are doing, by way of constitutional and human rights education and awareness.

What all of this tells us is that we need to take a holistic view when it comes to combating domestic violence. One cannot simply change the legislation without changing societal attitudes as well.

As you know, the Domestic Violence Act was enacted in 1998 and operationalised in 1999 to address the high levels of domestic violence in South Africa as well as to ensure more access to civil remedies.

At the time, the DVA was seen as an extremely progressive piece of legislation that was crafted with a strong focus on the victim.  The DVA incorporated a range of intimate and family relationships within its ambit - including heterosexual and same-sex relationships; marriage and co-habitation, as well as dating and customary relationships; relationships that have ended; parent-child relationships, as well as sibling relationships and those between members of an extended family.

It provides for physical and sexual abuse, economic abuse - unreasonably depriving family members of economic and financial resources to which they are legally entitled, including by unreasonably disposing of household effects or other property -, emotional, verbal and psychological abuse and any other controlling behaviour such as intimidation, harassment, stalking, damage to property, and entering the victim’s home without permission, where such conduct harms or may cause imminent harm to the safety, health and wellbeing of the complainant.

It also makes provision for persons other than the complainant to be able to seek a protection order. These include a parent, counsellor, a health service provider, a member of the police, a social worker, a teacher or someone who has a material interest in the well-being of the complainant.

However, we all know that its implementation has been fraught with challenges and systemic inefficiencies that have failed many abused women and the rising figures of intimate femicide are often linked to implementation problems with the Act.

It is therefore not surprising that in the memorandum of 24 demands of the #TotalShutdown movement there is a lot of emphasis on legislation.

For example, the demands call for “consistent sentencing and enforcement of existing laws” in particular, the minimum sentencing legislation in sexual and domestic violence cases as well as a “commitment to beginning a process to develop a comprehensive law on addressing gender-based violence against women.” The law must include the provision of services, a clear legal and policy framework for protection and support services for victims and survivors of violence.

The Declaration of the Presidential Summit against Gender-Based Violence and Femicide states that a range of laws and policies, programmes and interventions are in place across all sectors to address respective forms of gender-based violence and femicide, but notwithstanding all these interventions, prevention has not received the necessary attention to make a meaningful impact.

Article 5 of the Declaration thus demands that “the existing laws and policies applicable to gender-based violence and femicide are to be reviewed to ensure that they are more victim-centred and responsive, and that the identified legislative gaps are addressed without delay.”

Article 7 of the Declaration further calls for the fast-tracking of the finalisation of outstanding legislative measures and policies that relate to GBV and femicide, as well as the protection of the rights of women and gender non-conforming persons – in particular the Prevention and Combating of Hate Crimes and Hate Speech Bill, the Victim Support Services Bill and the policy relating to the decriminalization of sex work.

The implementation of the Presidential Summit Declaration is currently monitored by the Interim Steering Committee against GBVF, which is co-chaired by the Presidency and civil society.

Flowing from Article 5 of the Declaration, our Department has included a number of additional performance indicators. These include -

I am pleased to advise that our Department has commenced with the review of the Domestic Violence Act after 20 years of its implementation.  

The review is identifying gaps in the Act and is seeking to strengthen the prevention of and response to violence in domestic relationships. The review will need to consider both the strengths and the weaknesses of the legislation as well as aspects around implementation.

For example, the Act provides a wide and open-ended definition of domestic violence, but there are different interpretations of the definitions of the acts of domestic violence by courts, especially when such definition requires a repetition of an act.  For instance, the definition of ‘emotional, verbal and psychological abuse’ includes ‘repeated insults, ridicule or name calling’.

We know that there are magistrates who do not want to assist complainants who allege that they were insulted on 2 occasions, as they interpret the word, ‘repeated’ as meaning more than 2 instances.

Also, the definitions of certain acts of domestic violence must recognise technological advancements. For instance, the definition of ‘harassment’ makes reference to calls, letters, telegrams, facsimiles, e-mails and so forth, but many people are now using social media, SMSes and apps such as WhatsApp to communicate.

The Act also currently requires SAPS officials to make arrangements for the complainant to find a suitable shelter, but the Act does not expressly require the Department of Social Development to offer shelter services to the complainants. At present, DSD funds 113 shelters and 19 White Doors, but these are inadequate to meet the demand.

The Act currently provides that police officials must explain to the complainant the content of the prescribed notice that outlines the rights of the complainant, and this must be done in the official language of the complainant’s choice, but we know that in the case of many non-nationals, we are not always in a position to provide international interpretation services.

The Act also currently provides that if a complainant is not legally represented, the clerks of court must assist such complainant, but the #TotalShutDown Movement has stressed that destitute women must rather be afforded legal aid services.

The Act also specifies certain stakeholders for implementation, but stakeholders in the GBV sector have since expanded to include, amongst others, the Department of Basic Education, the Department of Higher Education and Training, COGTA and others.  It has therefore been suggested that the Act must set out provisions that specify the responsibilities of each stakeholder, beyond the current wording of the Act.

As mentioned, the Act allows for third party applications with the written consent of the victims. However, the requirement of written consent does not apply to minors, mentally disabled and unconscious victims. It has been suggested that the exclusion of the requirement of written consent be extended to older persons who have mobility, hearing, and cognitive challenges.

Furthermore, the Act sets out the procedure where complainants go to court to complete the affidavit for the application of the protection order. It has been suggested that this service could be offered online to increase accessibility to justice and that the Act should therefore permit e-services.

Also, the Act permits the issuing of interim protection orders, but the Act is silent on how counter applications for interim protection orders should be handled. It is now possible for both parties to have protection orders against each other. Amongst other interventions, there could be an integrated data management system to detect counter applications. This could also assist to track complainants, as many complainants disappear from the system before the interim protection orders are made final.

In addition, it has been suggested that the protection order must include prohibitions relating to the harmful and abusive use of social media and other electronic channels.

It has also been said that some magistrates are reluctant to prohibit the respondent from entering the shared residence; hence the unnecessary relocation of victims and their children to shelters – which often unfairly disrupts the education of these children. This is something that our dialogue today could consider so as to influence the amendment of the Act.

The Act creates specific crimes, however, some argue that the crimes must be extended to include the spectrum of crimes often perpetrated in domestic relationships. Some ask if it would be feasible to have a specific crime, called “domestic violence” – as opposed to the current use of existing common law offences and specific statutory crimes relating to domestic violence. This could improve the collection of statistics and data, and bring the country closer to knowing the actual magnitude of this scourge in our country.

With regards to the non-withdrawal section, this provision is only limited to the charge of a violation of protection order. There have been arguments to suggest that it be amended to cover all crimes related to domestic violence.

As a matter of interest, some of the other possible amendments to the Act, as already identified by our Department and which will be looked at during the review, could include the use of intermediary services where a child, a person with a mental disability or an older person is required to testify. Do we extend intermediary services to all traumatised victims, irrespective of age? These are the questions that must be addressed in this review.

It might also be useful to compel police officials and all frontline officials at service points to conduct a risk assessment attached to the victim before releasing such victim. This will curb domestic homicides often resulting from ineffective responses to reported cases of domestic violence.  

We also need to look at the seizure of weapons and the declaration of a person to be unfit to possess a firearm and the manner in which the SAPS must deal with dangerous objects which were seized in terms of an order of court.

We also need to provide for the issuing of directives by the Director-General: Justice and Constitutional Development, which clerks of the court must comply with in the execution of their functions in terms of the Act.

These are but some of the sections in the legislation that have already been identified as requiring possible amendment – I am sure there are many more.

With regards to the process of the review, it is important to highlight that in 2018 the Department commenced with the review of the Act before the Presidential Summit against GBVF took place in November 2018. This process was then halted to accommodate the resolutions taken at the Summit.

Since this is a 20th year review of the implementation of the Act, a broad spectrum of stakeholders must participate in the process.  

I think what is important when we do the review is to bear in mind that the legislation involves a large number of role-players to make it work – it’s not only about the courts and the SAPS, but also frontline domestic violence service providers and stakeholders such as institutions of higher learning, basic educators, ambulance dispatch services, paramedic services, civil society service providers, other criminal justice personnel, public health care workers, social workers, shelters, municipalities and other front-line services. We need to hear from them as to how the legislation can be improved.

We also need to look at what are policy issues versus more systemic issues that affect implementation.

I am aware that, a few years ago, civil society called for further research to be conducted on, amongst others, all forms of family violence in South Africa, especially the co-occurrence of child abuse with intimate partner violence, and that there should be more data on the relationship between perpetrator and victim, as well as taking a closer look at the economic drivers of domestic violence. These are all aspects which could be looked at in the review.

What is important is that there are increasing expectations from not only civil society, academia and the GBVF sector, but also the public at large, that we come up with workable legislation. We therefore need an intensive review process that will get to the bottom of implementation challenges.

The review needs to be multi-sectoral, inclusive and evidence-based. We need to provide enough opportunity for inputs and consultation and therefore the review process will include multi-sectoral stakeholder consultative sessions.

Depending on the time constraints and capacity, the review could possibly be expanded to a review of the harassment legislation as well, and any other legislation pertaining to the protection of women.

As vital as the review of the legislation is, we still need to bear in mind that we need a holistic approach when it comes to combatting violence against women and femicide. Other interventions, policies and programmes are equally important – for example, rolling out Sexual Offences Courts and ensuring that they function optimally and strengthening our Thuthuzela Care Centres, ensuring that we don’t have problems with a lack of rape kits, as we saw recently.   As you know, the TCCs also deal with victims of sexual abuse in domestic relationships. 

We need to continue with the establishment of the very first Femicide Watch in the country and in Africa - which is now in Phase 2 of development - focusing on channelling the available SAPS and DoJCD data extrapolated from the IJS hub to the recently developed Femicide Watch dashboard.

Furthermore, good work is being done by our National Task Team on LGBTI Rights. We need to continue these efforts and we need to continue our engagements with men around responsible fatherhood.

Government is also working on a National Strategic Plan endorsed by policy makers, advocacy groups and the people of the country to deliver high-quality programmes that are proven to prevent GBVF.

In short: We need to stop violence before it starts. Prevention is key. 

I thank you.